TITLE: B-311245.5, Metro Machine Corporation--Reconsideration and Modification of Recommendation, August 4, 2008
BNUMBER: B-311245.5
DATE: August 4, 2008
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B-311245.5, Metro Machine Corporation--Reconsideration and Modification of Recommendation, August 4, 2008

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Metro Machine Corporation--Reconsideration and Modification of
   Recommendation

   File: B-311245.5

   Date: August 4, 2008

   Michael R. Katchmark, Esq., Willcox & Savage, for the requester.
   Mary G. Curcio, Esq., and Linda S. Lebowitz, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request for reconsideration and modification of recommendation for
   corrective action--tailored to address prejudicial flaws in the agency's
   conduct of the procurement--is denied where the awardee/requester showed
   no error in, but simply disagreed with, our recommendation that the agency
   conduct meaningful discussions (1) with the protester concerning the
   inconsistent allocation of labor hours between its cost and technical
   proposals and (2) with the awardee/requester concerning its
   unrealistically low capped indirect rates and the effect of its proposed
   cost cap in terms of performance risk which, while not set forth in the
   solicitation as a separate evaluation factor, was nevertheless reasonably
   related to, and encompassed by, the solicitation's cost realism evaluation
   requirement and the solicitation's caution to offerors that the agency had
   concerns with the potential for post-award performance problems if an
   offeror proposed unrealistically low costs.

   DECISION

   Metro Machine Corporation requests that we reconsider and modify our
   recommendation for corrective action as reflected in our decision, MCT JV,
   B-311245.2, B-311245.4, May 16, 2008, 2008 CPD para. 121, in which we
   sustained the protest of MCT JV[1] against the award of a contract to
   Metro under request for proposals (RFP) No. N00024-07-R-4006, issued by
   the Department of the Navy for maintenance and modernization work on Navy
   amphibious assault ships.

   We deny the request for reconsideration and modification of our
   recommendation for corrective action.[2]

   MCT JV's Labor Hour Allocation

   The RFP provided for the award of a cost-plus-award-fee contract on a
   best-value basis; the contract was awarded to Metro, which submitted a
   higher technically rated, higher proposed and evaluated cost proposal (as
   compared to MCT JV's proposal). As relevant here, in their technical
   proposals, offerors were required to describe "manpower" and workload
   estimates, specifically providing current and projected workload estimates
   for all team members and/or significant subcontractors. In their cost
   proposals, offerors were required to submit proposed estimated data based
   upon a sampling of specific work items expected to be performed under the
   contract, as well as a non-specific work item consisting of a specified
   number of labor hours for "other work." RFP at 127. With respect to this
   latter item, offerors were advised to ensure that their cost proposals
   were in accordance with their proposed technical approaches, including any
   current or proposed work sharing agreements. Further, offerors were
   advised that the agency would evaluate the realism of an offeror's
   proposed estimated costs; offerors were warned not to propose
   unrealistically low estimated costs.

   With respect to MCT JV's proposal, during discussions, the agency
   questioned MCT JV's distribution of work among the members of the joint
   venture and asked MCT JV to explain why it did not allocate work among the
   joint venture members in accordance with a resource agreement submitted by
   MHI as a prime contractor as part of a separate proposal.[3] In its
   revised proposal, among other things, MCT JV explained, and the cost
   evaluators agreed, that the resource agreement did not apply to the joint
   venture as this agreement was part of MHI's separately submitted proposal
   as a prime contractor. In evaluating MCT JV's final revised proposal, the
   agency reallocated the labor hours in MCT JV's cost proposal in a manner
   that produced a result more closely aligned with how those hours were
   allocated in the offeror's joint venture agreement, and the agency took
   into account MCT JV's response to discussions regarding work percentages
   provided by the joint venture, all of which resulted in a [DELETED]
   increase to MCT JV's proposed costs.

   In the decision sustaining MCT JV's protest, we concluded that the agency
   failed to conduct meaningful discussions with MCT JV where it questioned
   MCT JV about the allocation of labor hours in its cost proposal solely by
   reference to an inapplicable resource agreement, without conveying the
   agency's actual concern that the labor hour allocation in MCT JV's cost
   proposal did not appear to be consistent with the labor hour allocation in
   its technical proposal and joint venture agreement. We recommended that
   the agency hold meaningful discussions with MCT JV concerning its
   allocation of labor hours in its cost proposal.

   Metro requests that we reconsider and modify our recommendation for
   corrective action. Under our Bid Protest Regulations, to obtain
   reconsideration, the requesting party must set out the factual and legal
   grounds upon which reversal or modification of the decision is deemed
   warranted, specifying any errors of law made or information not previously
   considered. 4 C.F.R. sect. 21.14(a) (2008). The repetition of arguments
   made during our consideration of the original protest and mere
   disagreement with our decision do not meet this standard. R.E. Scherrer,
   Inc.--Recon., B-231101.3, Sept. 21, 1988, 88-2 CPD para. 274. Moreover, in
   determining the appropriate recommendation in cases where we find a
   violation of procurement laws or regulations or the failure of the agency
   to follow the stated evaluation criteria, we consider all of the
   circumstances surrounding the procurement. 4 C.F.R. sect. 21.8(b).

   Metro agrees with our conclusion that the costs proposed by MCT JV could
   not have been accepted by the agency because of the inconsistency in the
   allocation of labor hours between MCT JV's cost and technical proposals
   and, without correcting this matter through discussions, MCT JV could not
   have been awarded the contract. Metro asserts, however, that even if MCT
   JV's lower proposed costs had been accepted by the agency, these lower
   costs would not outweigh the technical superiority of Metro's proposal.
   Accordingly, Metro argues that there is no reason for the agency to reopen
   discussions with all offerors and evaluate another round of revised
   proposals when, "in all likelihood," the result will be the same--Metro's
   technical superiority will outweigh any cost benefit associated with MCT
   JV's proposal and the award will remain with Metro. In other words, Metro
   contends that reopening discussions should only occur if there is a
   possibility that the selection decision will change. Request for
   Reconsideration and Modification of Recommendation at 8.

   Here, it is impossible to predict what changes MCT JV might make to its
   proposal if it, in fact, is given meaningful discussions regarding the
   labor allocation issue.[4] Metro's mere disagreement with our
   recommendation for corrective action--that the agency hold meaningful
   discussions with MCT JV with respect to this issue--and Metro's
   speculation as to the outcome of the competition following the agency's
   conduct of meaningful discussions does not demonstrate that our decision
   contains factual or legal errors. On this record, we conclude that Metro
   has not provided a valid basis warranting reconsideration and modification
   of our recommendation.

   Metro's Indirect Rate Cap

   In the decision sustaining MCT JV's protest, we also concluded that where
   Metro capped its indirect rates at levels the agency found [DELETED] below
   Metro's costs, the agency failed to consider the performance risk
   associated with how Metro capped its indirect rates in determining that
   the firm's proposal represented the best value to the government. In this
   regard, prior to the submission of final revised proposals, the agency
   amended the RFP to require offerors to cap their indirect rates for at
   least the first 3 years of contract performance at the rates in their cost
   proposals. The RFP provided that the agency would evaluate proposals for
   cost realism and warned that, because unrealistically low costs may cause
   problems for the agency and the contractor during contract performance, if
   the agency, "in the exercise of its judgment," determined that a cost
   proposal was unrealistically low, the agency "may" reject the proposal,
   regardless of the proposal's technical merit and/or evaluated costs. RFP
   at 138.

   In its final revised proposal, Metro capped its indirect rates [DELETED].
   The cost evaluators found that Metro's rates were [DELETED] lower than its
   current rates; however, because the rates were capped, the cost evaluators
   limited the adjustments to those years where Metro's rates were not capped
   (using Metro's higher forward pricing rate agreement rates). The cost
   evaluators specifically noted that Metro may experience greater indirect
   cost rates than projected, with a resulting operating loss, and that this
   was a risk that the agency may have to deal with after award, assuming
   Metro was the successful offeror. In addition, the Defense Contract Audit
   Agency (DCAA) determined that Metro's financial condition was [DELETED].
   There was no information in the record, however, that the agency
   considered, in making its best-value selection decision, the performance
   risks associated with Metro's unrealistically low capped indirect rates.

   In light of the RFP's explicit direction to offerors not to propose
   unrealistically low costs due to the agency's concern with potential
   performance problems, we concluded that the agency was required to
   consider in its selection decision the performance risks associated with
   Metro's unrealistically low capped indirect rates. We recommended that the
   agency hold discussions with Metro to more accurately gauge the impact of
   its capped rates on its ability to perform the contract.

   Metro requests that we reconsider and modify our recommendation for
   corrective action. According to Metro, under the RFP, if the agency
   determined that an offeror's proposed costs were unrealistically low, the
   agency's only available option was to reject the proposal in its
   entirety.[5] Metro contends that since the agency awarded it the contract,
   the agency, in essence, rejected this option; therefore, Metro argues that
   our recommendation is contrary to the terms of the RFP where we
   recommended that the agency consider, in making a new selection decision
   following the conduct of meaningful discussions with the offerors, the
   performance risks associated with Metro's cost proposal. Request for
   Reconsideration and Modification of Recommendation at 4-6.[6]

   Again, Metro has not demonstrated that our decision contains factual or
   legal errors. In this regard, we view Metro's argument as a contention
   that we recommended that the agency use an unstated evaluation
   factor--performance risk--in determining that Metro's proposal, even with
   unrealistically low capped indirect rates, represented the best value.
   However, an agency may consider the performance risk arising from an
   offeror's proposed cost cap. See, e.g., Veda Inc., B-278516.2, Mar. 19,
   1998, 1998 U.S. Comp. Gen. LEXIS 153, * 31. Here, while "performance risk"
   may not have been set forth in the RFP as a separate evaluation factor, we
   believe, and Metro has not shown otherwise, that performance risk was
   reasonably related to, and encompassed by, the RFP's cost realism
   evaluation requirement and in the RFP's caution to offerors that the
   agency had concerns with the potential for post-award performance problems
   if an offeror proposed unrealistically low costs. Even when performance
   risk is not specifically listed in the solicitation as an evaluation
   factor, an agency may always consider risk intrinsic to the stated
   evaluation factors. See, e.g., Ridoc Enter., Inc., B-292962.4, July 6,
   2004, 2004 CPD para. 169 at 4.

   Given the RFP's stated concern with post-award performance problems as a
   result of an offeror proposing unrealistically low costs--to the point
   that the agency reserved for itself the option of rejecting a proposal if
   an offeror's proposed costs were unrealistically low (regardless of the
   proposal's technical merit)--we believe it is reasonable for the agency to
   weigh the risks associated with Metro's unrealistically low capped
   indirect rates since such risks are reasonably related to, and encompassed
   by, the agency's cost realism evaluation, including DCAA's assessment, and
   the ability of Metro to successfully perform the contract. We think that
   the risk of performance problems, as a result of an offeror's
   unrealistically low proposed cost cap, is a legitimate concern and should
   be considered in the evaluation and selection process in terms of, for
   example, the effectiveness of an offeror's proposed approach and its
   ability to successfully perform the contract. In recommending that the
   agency conduct meaningful discussions with Metro on this issue, as opposed
   to recommending that the agency simply reject its proposal, we point out
   that Metro will have an opportunity to address the agency's concerns and
   to remain in the competition. On this record, Metro has not provided a
   valid basis warranting reconsideration and modification of our
   recommendation.

   In sum, where Metro has shown no error in, but simply disagrees with, our
   recommendation for corrective action, we decline to reconsider and modify
   our recommendation, which was tailored to address prejudicial flaws in the
   agency's conduct of the procurement.

   The request for reconsideration and modification of our recommendation for
   corrective action is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] MCT JV is a joint venture comprised of Marine Hydraulics
   International, Inc. (MHI), Colonna's Shipyard, Inc., and Tecnico
   Corporation.

   [2] Only Metro, not the agency, requested reconsideration and modification
   of our recommendation for corrective action.

   [3] MHI, as a prime contractor, submitted a separate proposal, with
   Colonna's and Tecnico as proposed subcontractors. The resource agreement
   was submitted with MHI's proposal, not with MCT JV's proposal.

   [4] We note that Metro also will have an opportunity to make changes to
   its proposal (for example, involving its proposed cap on its indirect
   rates, as discussed below) as a result of the agency conducting meaningful
   discussions with the offerors.

   [5] Where a dispute exists as to the actual meaning of a solicitation
   requirement, we resolve the matter by reading the solicitation as a whole
   and in a manner that gives effect to all provisions of the solicitation.
   Atlantic Research Corp., B-247650, June 26, 1992, 92-1 CPD para. 543 at 6.
   An interpretation must be consistent with the solicitation when read as a
   whole and in a reasonable manner. Id. In the context of the provisions of
   this RFP, and contrary to Metro's apparent position, we think the RFP's
   use of the term "may," as referenced above, is reasonably interpreted as
   permissive, rather than mandatory. Accordingly, the agency had the
   discretion, but was not required, to reject an unrealistically low cost
   proposal.

   [6] Metro further complains that we did not recommend that the agency
   consider the performance risks associated with MCT JV's cost proposal,
   where the offeror's proposed costs were [DELETED] adjusted upward. Id. at
   5-6. However, the record shows that the agency took into account the
   performance risks in MCT JV's cost proposal by making [DELETED] upward
   adjustments to its proposed costs; yet, for Metro, [DELETED] the agency
   limited its adjustments to the years where Metro did not cap its rates,
   thereby resulting in a substantially smaller upward adjustment to Metro's
   proposed costs. Accordingly, we believe the agency must assess the
   performance risks associated with Metro's cost proposal in some other way
   in determining whether its proposal represents the best value.